Citation NR: 9619588
Decision Date: 07/08/96 Archive Date: 07/22/96
DOCKET NO. 93-16 901 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts
THE ISSUE
Entitlement to service connection for a psychiatric
disability.
WITNESSES AT HEARINGS ON APPEAL
The appellant and his wife
ATTORNEY FOR THE BOARD
W. H. Wetmore, Counsel
INTRODUCTION
The veteran served on active duty from January 1955 to May
1958.
The Board of Veterans’ Appeals (Board) initially received
this case on appeal from an October 1991 RO rating decision
which found that the veteran had not submitted new and
material evidence such as to warrant reopening of his claim
seeking entitlement to service connection for a psychiatric
disability.
The Board in August 1994 found that the testimony of the
veteran and his wife plus a letter from his wife who appeared
to be a licensed health care professional provided new and
material evidence sufficient to warrant reopening his claim
for service connection for a psychiatric disorder. The Board
remanded the issue of entitlement to service connection for a
psychiatric disability for de novo consideration by the RO.
The RO found that service connection was not in order for the
veteran’s psychiatric disability and the case has been
returned to the Board for further appellate consideration.
In a statement received in March 1996, the veteran filed a
notice of disagreement with the February 1996 RO rating
decision which found that he had not submitted new and
material evidence to reopen a claim for service connection
for hypothyroidism. In that same statement, he filed a claim
for service connection for double vision and obesity. These
matters have not been developed for appellate consideration;
they are referred to the RO for appropriate action.
A power of attorney to the Massachusetts Veterans Services
Department is filed in the claims folder, but the veteran
advised at a July 1993 Board hearing that that organization
is not representing him in this appeal.
REMAND
The Board first had this case for appellate review in August
1994. At that time, the Board considered the issue of
whether new and material evidence has been submitted such as
to reopen a claim for service connection for a psychiatric
disability. The Board determined that new and material
evidence had been submitted, and remanded the case to the RO
in order that Social Security Administration records be
associated with the claims file, along with any medical
evidence supporting the veteran’s award of Social Security
Administration disability benefits; that the veteran’s spouse
be requested to provide her professional curriculum vitae so
that it could be determined if she qualified as an expert
witness; and that the veteran undergo a comprehensive VA
psychiatric examination. The requested development was
completed, the RO continued its denial of service connection
for a psychiatric disorder and a supplemental statement of
the case was issued in December 1995.
At a subsequent point in time three bound books of evidence
were added to the claims folder as well as some
correspondence from the veteran dated in March 1996.
This evidence includes the following: a report from a
private hospital reflecting the veteran’s treatment in March
1996; a statement from a VA doctor offering the opinion that
the veteran’s recounting of “destroying a mess hall” and
other behaviors recounted as occurring in service were
“suggestive for [his] having had symptoms of his mental
illness at the time” and that while “this incident may not
prove that he clearly had Schizoaffective Disorder,” further
review of his records was warranted; and a statement from S.
A. Hoffman, M.D., a private psychiatrist, who vigorously
disputes the opinion of a VA examiner in April 1995 and who
fails to specifically state that he reviewed the veteran’s
claims file prior to offering his opinion.
The RO has not issued a supplemental statement of the case
since December 1995 and has not reviewed the evidence
received since. The veteran has not waived RO review of that
evidence. Accordingly, the Board believes that such review
is necessary to preserve the veteran’s rights to due process.
Under these circumstances, the case is REMANDED for the
following:
1. The two volume claims file, including
three bound volumes and other packet of
largely duplicative evidence submitted by
the veteran with a cover letter dated in
March 1996, should be referred to a board
of two VA psychiatrists who should
restudy the case in detail. That study
should particularly include the opinions
expressed in the April 1995 VA
examination and Dr. Hoffman’s April 1996
report. Based on this comprehensive
review, the psychiatrists should express
opinions as to the following: (a) did
the veteran’s neurosis and/or psychosis,
as distinguished from any personality
disorder, develop during service; (b) was
a psychosis manifest within the first
post-service year; and (c) are any of the
acquired psychiatric disabilities
diagnosed since 1965 related to service?
2. If the veteran, who as noted above is
not represented in this appeal, submits
additional evidence while this case is at
the RO in remand status pending Board
review, that evidence must be reviewed by
the RO unless the veteran expressly
waives his right to such review.
If this benefit sought on appeal remains denied, a
supplemental statement of the case should be furnished the
veteran and his representative. They should be afforded the
requisite 60 days to respond. See 38 C.F.R. § 20.302(c)
(1995). Thereafter, the case should be returned to the Board
for further appellate consideration, if otherwise in order,
following appropriate appellate procedures. No action is
required of the veteran until notified. The purpose of this
REMAND is to procure clarifying data and to afford the
veteran due process.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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